The People V. Harvard Law
How America's Oldest Law School Turned Its Back on Free
Speech
By Andrew Peyton Thomas
Encounter Books
HC, 221 pgs. US$25.95
ISBN: 1-8935-5498-8
Harvard Law's schism over free speech
By Rachel Alexander
web posted May 16, 2005
Andrew Peyton Thomas, the district attorney for Maricopa
County, Arizona, and a graduate of Harvard Law School, has
put together a well-written, intriguing expose on the state of free
speech at his alma mater, providing an insider's perspective of
the top law professors in the country. Oddly enough, the friction
over free speech is not between the political "left" and the "right,"
because there are practically no conservatives in the
administration or on the law faculty, and the majority of students
offered admission are also of the leftist persuasion. The battle
over free speech is between the "left" and the "far left." (p. 170)
Conservatives are rarely mentioned in the book; the major
players consist of traditional leftists like Alan Dershowitz versus
the new leftists, known as "Crits."
"Crits" is the abbreviation for proponents of Critical Legal
Studies, the legal offshoot of postmodernism. The underlying
goal of Crit theory is that current societal structure and laws
should be torn down because they were created by sexist white
males. While every other aspect of society is "critically" assumed
to bear this stigmata, the assumption itself is a matter of sacred
belief and cannot be questioned. Crit legal classes generally
consist of initiations into feminism, homosexual studies, race, and
class conflict. Critical discussions of these beliefs are not
welcome.
Old left opponents of Crit theory contend that it lacks any plan
for improving the current societal structure, instead only focusing
on criticism, which comes from the perspective of the left's latest
favorite oppressed interest-group. (p. 13) While the "Crits" are
quick to point out that they are defending the oppressed, the
interests of these oppressed coincides all too often with the
interests of the elites at Harvard Law. The Crits' philosophy
lacks any serious epistemology, consisting mainly of emotional
rhetoric. The lack of intellectual rigor in postmodernism theory
was embarrassingly revealed in 1996 and again in 2005, when
academics submitted nonsensical papers written in postmodern
style with pretentious rhetorical slogans as a prank to academic
conferences, which were accepted without question.
Thomas relays a long list of disturbing events that have taken
place at Harvard Law as a result of the "Critsizing" of Harvard
Law. The Crits insisted that Harvard Law Review publish
articles like "A Postmodern Feminist Legal Manifesto" by Crit
Mary Joe Frug, which cited Madonna as authority and included
profanity: "We are raped at work or on route to work because
of our sex, because we are **** ." (p. 79) Torts Professor Jon
Hanson told his students that "we should hold a chainsaw
manufacturer liable if someone misuses it." (p. 130) Not to be
out-Crited, Professor Charles Ogletree became a leader in the
movement to pay reparations to descendants of African slaves.
(p. 72)
Without any conservatives to attack, the Crits focused their
hostilities on the traditional leftists on the faculty and
administration who did not conform to all of their radical views.
When one of the old style leftists, Professor David Rosenberg,
criticized Crit theory by stating that feminism, Marxism, and
black race theory have contributed nothing to tort law, the Crits
convinced the administration to punish him. The administration
announced that attending his class was optional, a move which
seriously harmed his career. (p. 95)
The Crits sought to silence or remove anyone who spoke up
with a viewpoint contrary to theirs, and loudly complained that
there were not enough Crits on the faculty. However, they were
only interested in Crits whose physical characteristics fit their
special categories, e.g. women, minorities, and homosexuals. It
should be noted that there is not a single conservative on the law
faculty (there is one moderate Republican), yet there are several
Crits. (p. 127) The candidates for tenure proposed by the Crits
were under qualified and lacked the academic rigor necessary to
teach law. Thomas discusses several of these candidates and
how Crits the administration was pressured into hiring, like
Derrick Bell, ended up as an embarrassment to Harvard Law.
Bell freely acknowledged that he lacked the qualifications of the
other professors. (p. 34) He stated that the articles he wrote
were just story telling and did not contain the academic rigor of
law review articles. (p. 35) He had his students grade each
other's papers. (p. 34) He declared that liberal black professors
who didn't share his far left views "look black but think white."
(p. 37) At one point, Harvard Law assigned another professor
to teach Bell's classes for him since he was frequently absent. (p.
35) Yet in spite of the poor performance of professors like Bell,
Harvard Law was becoming increasingly dominated by
professors of his ideology.
What aided the Crits in their squelching of free speech at
Harvard Law was the lack of constitutional protection for free
speech at Harvard. Since Harvard is a private school, most First
Amendment protections granted to speech at public institutions
do not apply. Consequently, the Crits have had considerable
success prohibiting non-Crit viewpoints. Recently they attempted
to stifle criticism by creating speech codes. The purpose of the
speech codes would be to prohibit anyone at Harvard Law from
criticizing anyone within one of their special categories or
pointing out anything that might be viewed as critical of those
categories. Thomas relays the showdown in 2002-2003
between famous Harvard Law professor Lawrence Tribe, who
supported the speech codes, and Alan Dershowitz, who
successfully (so far) fought them off.
Andrew Thomas has painted a grim picture of free speech at
Harvard Law School. At the end of the book one is left
wondering whether conservatives, fair-minded people in the legal
profession and those considering going to law school should
bother with Harvard. Has Harvard Law departed so far from its
former intellectually rigorous high standard by caving into sub-
standard Crit vagaries that it should be avoided altogether?
There is certainly a growing niche for a conservative law school
to compete academically with Harvard Law. Just as Fox News
grew out of the descent of the major news networks as they slid
too far to the left, perhaps it is time for a truly fair and balanced
yet erudite law school to replace Harvard Law's reign as the
heavyweight law school. As Thomas concluded, "What remained
to be seen was whether America's leading law school would
reclaim its tradition of celebrating dissent, or continue to thwart
the very constitutional liberties that once gave the school life and
purpose." (p. 196)
Rachel Alexander is the editor of IntellectualConservative.com
and a former Assistant Attorney General for the State of
Arizona.
Enter Stage Right -- http://www.enterstageright.com